The Evolution of Asbestos Litigation

Edward F. Sherman | Symposium

As shown in this World War II magazine advertisement, asbestos was indeed a “precious mineral” that was “vital in this war—for tanks and trucks, ships and planes.” Asbestos was a staple of the machine age in insulating from the effects of heat. And America’s war adversaries—represented by the caricatures of a despondent Hitler, Mussolini, and Tojo—were at a distinct disadvantage for not having any to mine. Thousands of tons of asbestos were used in World War II ships to insulate piping, boilers, steam engines, and steam turbines. Because of its tensile strength, resistance to fire and heat, absorption of sound, and low cost, asbestos became not only the all-purpose solution to the heat generated in the transport and weaponry of the new warfare, but also an indispensable product in manufacturing and building.

This Symposium addresses the legal problems associated with the scourge of asbestos after its “breaking bad” in the second half of the twentieth century. Professor Paul D. Carrington has provided an historical account of the gradual growth of awareness of the danger of asbestos to humans, a story that covers many decades and reflects regrettable failures of industry and government to warn and protect against the risks. Even before World War II, there were indications that asbestos was harmful to humans if the fibers were breathed in. The prolonged inhalation of asbestos fibers can cause serious illnesses, including malignant lung cancer, mesothelioma, and asbestosis. By 1935, there was published evidence that asbestos exposure correlated with lung cancer, but it would still be decades before the full scope of the danger became apparent to all. In World War II, large numbers of service members and civilians were exposed to asbestos in boiler rooms. Despite industry touting what asbestos meant to the war effort, for every thousand workers, out of the 4.3 million shipyard workers in the United States during World War II, about fourteen died of mesothelioma and an unknown number of asbestosis.

The asbestos manufacturing industry in the United States was long dominated by the Johns-Manville Corporation. It had mines and then fabricated asbestos for many uses, often also selling to intermediate companies to use in their products. In 1952, Dr. Kenneth Smith, Johns-Manville’s medical director, recommended (unsucces-sfully) that warning labels be attached to products containing asbestos. Later, Smith testified:

[I]t was a business decision as far as I could understand. . . . [T]he corporation is in business to make, to provide jobs for people and make money for stockholders and they had to take into consideration the effects of everything they did and if the application of caution label identifying a product as hazardous would cut into sales, there would be serious financial implications.

The use of asbestos continued to spread to new products and locales in the 1950s and 1960s. Building materials were a major use. As a result, many Americans were exposed in their homes, offices, or shopping areas, as well as in the workplace. Asbestos was also often an integral part of products, such as automobile and railroad brakes, and other parts that would bring new liability to those industries at a later date.

By the mid-1970s, health concerns had surfaced sufficiently that businesses began to use alternative products, and the first government prohibitions on asbestos use arose. Today most products manufactured no longer contain asbestos. In the industrialized world, asbestos was phased out of building products mostly in the 1970s, with most of the remainder phased out by the 1980s. However, the continuing effects of the wide use of, and exposure to, asbestos left large numbers of victims suffering or dying from a variety of asbestos-related conditions.

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